Comment on the Draft Control of Tobacco Products and Electronic Delivery Systems Bill
A draft version of the Control of Tobacco Products and Electronic Delivery Systems Bill (the Bill) was published by the Department of Health (DOH) on the 9th of May. The publication follows an increasing amount of commentary on the tobacco industry and the need for a stricter regulatory framework made by the DOH and Minister Aaron Motsoaledi himself. The Minister, at the opening of the World Conference on Tobacco or Health in March, stated that he sees no value in tobacco products, either socially, academically or economically and that, over time, he hopes to see the elimination of tobacco products altogether.
The Bill aims to regulate the ‘traditional’ tobacco industry, as well as next-generation products, a category more commonly referred to as ‘vaping’. While the stated purpose seems clear – to restrict and limit the sale and consumption of tobacco products, the Bill itself is riddled with inconsistencies, ambiguous definitions and a number of provisions that may not pass Constitutional muster.
It is clear that the drafters ran into definitional hurdles from the get-go. Section 1 of the Bill distinguishes between ‘tobacco products’, ‘electronic nicotine delivery systems’ and electronic non-nicotine delivery systems.’
In terms of the Bill, ‘electronic non-nicotine delivery systems’ refers to an electronically operated product designed to deliver an aerosol to users by heating a solution of substances that does not contain nicotine and any other solution intended for use with or in the product’. While, presumably, the purpose of this provision is to include vaping devices that operate without the use of nicotine, the effect is to include any and all electronic devices that heat a solution and deliver an aerosol to users, even those not directly associated with vaping.
This is compounded by the fact that, to be excluded from the ambit of the Bill, a substance must already fall under the ambit of the Medicines and Related Substances Act and, further, be classified as a ‘tobacco product’ in terms of the Bill. Substances or devices that do not meet the requirements of a tobacco product, but are already governed by the Medicines and Related Substances Act would now fall under the ambit of Tobacco Control Bill too. Certain inhalers, aerosols, nebulizers and automatic air fresheners meet the requirements of an ‘electronic non-nicotine delivery system’ – they deliver an aerosol (a term which is undefined by the Bill), by heating a solution that does not contain nicotine but is intended for use with or in the product. Some of these products even contain propylene glycol, an ingredient mentioned in the Bill’s definition of electronic nicotine delivery system. While it is important to note that the provisions of the final Act will be read with the spirit and purpose in mind, such open ended definitions raise questions as to the familiarity the drafters of the Bill have with the devices they propose to regulate.
The definition for ‘smoke’, which finds practical application in section 2 of the Bill, is likewise problematic. The definition includes both ignited tobacco products (such as cigarettes) and ‘heated, but not ignited, tobacco products’ (such as e-liquids). The definition, however, goes further and includes to ‘operate or otherwise have control over an electronic delivery system that produces an emission of any sort’. Bill Kirby, the Director of Healthcare and Life Sciences Practice at Werksmans Attorneys, has already highlighted the lack of clarity, as well as the potential this definition presents for the broadening of the application of the Bill. As ‘to operate or control’ is not defined, it can be argued that smoking includes being in active possession of the electronic delivery system, even if one were to abstain from using it.
Further ambiguities can be found in Section 2 of the Bill. Section 2 (1) (c) prohibits smoking in ‘any motor vehicle when a child under the age of 18 years is present and there is more than one person present in that vehicle’. First, the prohibition of smoking if there is a minor present is irrelevant given the fact that smoking in a vehicle is prohibited if there is more than one person in the vehicle, regardless of whether or not they are a minor. Secondly, the effect of this provision is to remove consent from the equation. Even if both persons were smokers, were smoking at the same time or consented to the other party’s smoking, the action would be prohibited.
Regarding potential Constitutional issues, section 4 of the Bill provides that the Minister must, in future, prescribe standardised packaging and labelling of tobacco products. The section then outlines the minimum standards that the Minister must include in the regulations relating to packaging and labelling of tobacco products. This includes the requirement that all tobacco products have a uniform plain colour and texture, that any branding or logos are prohibited and that the brand name and product name may only appear on the packaging in a standardised colour and typeface. These provisions have the effect of, arguably, infringing upon constitutionally protected property rights.
In Laugh it Off Promotions v SAB the Supreme Court of Appeal noted that, despite judicial resistance in some quarters, trade marks are property. The fact that property is intangible does not make it of a lower order. This dictum was not challenged by the Constitutional Court and it must be accepted that judicial recognition has extended the ambit of section 25 of the Constitution to include intellectual property rights. As a result, a claim could be made that the statutory prohibition of the use of a trade mark would amount to deprivation of property in terms of section 25 of the Constitution and that the provisions in question would be invalid.
Kirby has stated that the legal approach to the control of alternative products, such as electronic delivery systems or vaping products would have to be specifically suited to take into account the nature of the particular products concerned, as well as the technology that they employ.
That this was not the case with the drafting of the Bill is clear and may be a result of a lack of technical knowledge of the products in question, as well as the fact that the relevant industry was not consulted in the drafting of the Bill. The Vapours Product Association said, in a statement on Tuesday (15th May), that the Minister had failed to enter into consultation with the relevant industry and had taken an overzealous approach which would, in effect, make it easier to smoke than to vape in South Africa.
